DENNIS, Circuit Judge:
This appeal challenges the district court's judgment enforcing a Medicaid recipient's right of action under the Civil Rights Act, 42 U.S.C. § 1983, based on a state Medicaid agency's deprivation of his federal statutory right to medical assistance under the Medicaid Act, 42 U.S.C. § 1396 et seq. The issues are: (1) whether the Louisiana Department of Health and Hospitals (LDHH), the state Medicaid agency, unlawfully denied the recipient's claim under the Medicaid Act's program for "early and periodic screening, diagnostic, and treatment services" (EPSDT) by refusing to pay for his medically prescribed disposable incontinence underwear that is necessary to ameliorate his physical and mental conditions caused by spina bifida, which results in his total bowel and bladder incontinence, loss of sensation, and continual risk of infection; and, if so, (2) whether LDHH's violation of the statute deprived the recipient of a right secured by federal statute for which he may bring an action for redress under 42 U.S.C. § 1983.
The plaintiff, S.D., a sixteen-year-old Medicaid recipient, is afflicted with spina bifida, a congenital defect characterized by imperfect closure of the spinal column. Because of his birth defect, S.D. has total bowel and bladder incontinence and does not have sensation below his waist. Thus, he cannot sense potentially infectious skin irritations resulting from incontinence. S.D. also has two club feet and has trouble walking. He requires leg braces, forearm crutches, and a swing gate to move over short distances. He requires a wheelchair to move over long distances.
As an infant, S.D. was placed in foster care. He was adopted by his parents, and he receives Medicaid benefits pursuant to a federal policy to encourage the adoption of special needs children. He is a qualified recipient of Medicaid's EPSDT program, under which states provide, in accordance with federal law, screening, diagnosis and treatment services to individuals under age twenty-one. Before S.D. moved to Louisiana with his family, he was provided with disposable incontinence underwear by the Virginia Medicaid program.
In 2002, S.D.'s Louisiana physician, Dr. Ernest Edward Martin, Jr., Chairman of the Department of Family Medicine of the Ochsner Clinic, prescribed disposable incontinence underwear as health care that is necessary to ameliorate S.D.'s mental and physical conditions. Specifically, Dr.
LDHH denied S.D.'s claim stating that "the appliance, equipment, supplies or service is available through another agency,"
S.D. brought this action in the district court against LDHH under 42 U.S.C. § 1983 seeking injunctive and declaratory relief. On cross motions for summary judgment, the district court granted S.D.'s motion and denied that of LDHH. The district court concluded that under the Medicaid Act's EPSDT program a qualified recipient is entitled to the health care, services, treatment and other measures described in § 1396d(a) of the Act when such care or services are necessary for corrective or ameliorative purposes; the EPSDT provisions of the Medicaid Act create rights enforceable by § 1983; and LDHH deprived S.D. of his federal right to EPSDT benefits in violation of the Medicaid Act. Accordingly, the district court rendered summary judgment declaring that S.D. is entitled to medical assistance for the prescribed disposable incontinence underwear under the EPSDT program and ordering LDHH to provide medical assistance to S.D. for that purpose. LDHH appealed.
We review the district court's decision de novo, both because it is a summary judgment, and because it requires us to answer issues of statutory interpretation. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 (5th Cir.1995) (en banc); Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). Summary judgment is appropriate only when the record indicates "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. Because there is no dispute as to any material issue of fact in this appeal, our review is limited to whether the plaintiff is entitled to judgment as a matter of law.
Medicaid is a cooperative federal-state program through which the federal government provides financial aid to states that furnish medical assistance to eligible low-income individuals. See 42 U.S.C. § 1396 et seq.; see also Atkins v. Rivera,
To qualify for federal assistance, a state must submit to the Secretary and have approved a "state plan" for "medical assistance," 42 U.S.C. § 1396a(a), that contains a comprehensive statement describing the nature and scope of the state's Medicaid program. 42 CFR § 430.10 (1989). "The state plan is required to establish, among other things, a scheme for reimbursing health care providers for the medical assistance provided to eligible individuals." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).
The Medicaid Act defines "medical assistance" as "payment of part or all of the cost of ... care and services" included in an enumerated list of twenty-seven general health care categories ("medical assistance categories"). 42 U.S.C. § 1396d(a). Some of the categories must be included within state plans (mandatory categories) while others may be included at the option of the state (optional categories). 42 U.S.C. § 1396a(a)(10)(A).
The Act requires that each state plan provide EPSDT health care and services as a mandatory category of medical assistance. The Act describes EPSDT as "early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of twenty-one;". 42 U.S.C. §§ 1396a(a)10(A), 1396d(4)(B). Subsection (r) further defines EPSDT services as, inter alia, "[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).
Thus, EPSDT is a comprehensive child health program designed to assure the availability and accessibility of health care resources for the treatment, correction and amelioration of the unhealthful conditions of individual Medicaid recipients under the age of twenty-one. See CMS State Medicaid Manual § 5010.B [hereinafter "SMM"]. A principal goal of the program is to "[a]ssure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly." Id.
Louisiana's State Medicaid Plan was approved by CMS. As part of its state plan, Louisiana proposed and CMS approved the provision of the optional medical assistance category of "home health care services"
In its appeal, LDHH does not challenge the district court's determinations that (1) S.D. is eligible for coverage by the EPSDT program, (2) S.D. has physical and mental illnesses and conditions caused by permanent bowel and bladder incontinence resulting from an irreparable birth defect of spina bifida, and that, (3) the medical prescription of disposable incontinence underwear is a health care, service, treatment, or measure necessary to correct or ameliorate S.D.'s unhealthful physical and mental conditions discovered by the screening services. Thus, there is no factual or legal dispute as to the conclusions that S.D. is eligible to receive EPSDT services and that the medical assistance for the prescription of disposable incontinence underwear he seeks is necessary to ameliorate his unhealthful conditions discovered by screening within the terms of the EPSDT program.
LDHH contends, however, that, despite the necessity of the prescription of incontinence underwear to the amelioration of S.D.'s condition, the denial of S.D.'s claim should be reinstated because: (1) The district court overstated the scope of the EPSDT mandate by adopting the "convenient shorthand" or "erroneous assumption" that a state is required to provide EPSDT children with any service that could be provided for in a state plan, even if the service is not one that the state has elected to provide; (2) The medical prescription of disposable incontinence underwear, although necessary to ameliorate S.D.'s condition for ESPDT purposes, does not constitute a health care, service, treatment or measure "described in Section 1396d(a)" of the Act; (3) Louisiana's State Medicaid Plan, as approved by CMS, excludes incontinence supplies from coverage under the EPSDT program; (4) LDHH had the implied authority or discretion to exclude this type of health care or service without the approval of CMS; and (5) Section 1983 of Title 42, which affords a cause of action for the "deprivation of any rights ... secured by [federal] laws," does not provide S.D. with a right of action to sue LDHH because the provisions of the Medicaid Act upon which S.D. relies does not create an enforceable "right" within § 1983's meaning.
LDHH sets the stage for all of its arguments by contending that the district court's decision was based on the "erroneous assumption" or "convenient shorthand" that the EPSDT mandate requires a state to provide eligible children with any health care, service, treatment or other measure that could be provided for in its state plan, even if the health care or service is not one that the state has elected to provide. LDHH conveniently omits a crucial part of the district court's holding, however, because that court said, as does the statute, that states participating in Medicaid are required to provide medical assistance under the EPSDT program only for health care, services, treatments and other measures (1) described in § 1396d(a), that are (2) necessary to correct or ameliorate defects and physical or mental illnesses and conditions discovered by the screening services.
In determining the meaning of the Medicaid Act's EPSDT provisions, the starting point is the language of the statute itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)(citing Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985)). Section 1396a(a)(10) provides that a state plan for medical assistance must make available to all qualified individuals "the care and services listed in" § 1396d(a)(4). Section 1396d(a)(4)(B) provides that "medical assistance" means payment of part or all of the "cost of the following care and services" for individuals: "early and periodic screening, diagnostic, and treatment [EPSDT] services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of twenty-one[.]" Section 1396d(r), in pertinent part, provides that "[t]he term `early and periodic screening, diagnostic, and treatment services' means the following items and services:....(5) Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).
The crucial phrases of § 1396d(r)(5) provide that EPSDT care and services include: (1) "health care, diagnostic services, treatment, and other measures described in [§ 1396d(a)]" (2) "necessary ... to correct or ameliorate ... conditions discovered by the screening services" (3) "whether
The plain meaning of statutes is conclusive, except in the "rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982). This is not one of those rare cases because the Act, as literally applied, is fully consistent with the intent of its drafters.
The EPSDT program was added to the Medicaid Act in 1967. Under the original EPSDT provision, all Medicaid-eligible individuals under age twenty-one were entitled to "such early and periodic screening and diagnosis ... to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary." (emphasis added) Pub.L.90-248, 81 Stat. 929, codified at § 1396d(a)(4)(U.S.Code 1988 edition). Congress thus initially authorized the Secretary to make regulations providing for treatment and health care measures to correct or ameliorate defects and chronic conditions. The Secretary promulgated regulations which provided for care and treatment that he designated as "discretionary services" and provided that a state plan "may provide for any other medical or remedial care" defined as medical assistance by the Act. See 42 CFR § 441.57.
By 1989 Congress had become concerned that, because the original EPSDT health care, services and treatment provision was optional and not described in detail in the statute, many states had chosen not to provide EPSDT-eligible children all the care and services allowable under federal law. See Senate Finance Committee Report, 135 Cong. Rec. 24444 (Oct. 12, 1989) ("The EPSDT benefit package has never been described in detail in the statute.... Additionally, while states have always had the option to do so, many still do not provide to children participating in EPSDT all care and services allowable under federal law, even if not otherwise included in the state's plan.") Congress therefore amended the Act in 1989 to mandate that a state agency must provide EPSDT-eligible children "[s]uch other necessary health care ... described in [the Act's § 1936d(a) definition of `medical assistance'] to correct or ameliorate defects ... illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5) (emphasis added). Consequently, Congress in the 1989 amendment imposed a mandatory duty upon participating states to provide EPSDT-eligible children with all the health care, services,
Furthermore, the Senate Finance Committee noted that the 1989 amendments "require that states provide to children all treatment items and services that are allowed under federal law and that are determined to be necessary ... even if such services are not otherwise included in the State's plan." 135 Cong. Rec. S13234 (Oct. 12, 1989) (emphasis added); See also 135 Cong. Rec. S6900 (June 19, 1989)(statement of Sen. Chafee) (Under amendment "Medicaid would cover any medically necessary service identified as necessary through the EPSDT program"); H.R. Conf. Rep. 101-386, at 453 (1989) (amendment would require States "to provide any service that a State is allowed to cover with Federal matching funds under Medicaid that is required to treat a condition identified during a screen, whether or not the service is included in the State's Medicaid plan.") Thus, the text of the statute and its legislative history demonstrate that states participating in the Medicaid program must provide all of the health care and services permitted under § 1396d(a) when necessary to correct or ameliorate a defect or condition discovered by screening.
Accordingly, every Circuit which has examined the scope of the EPSDT program has recognized that states must cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a). See Collins v. Hamilton, 349 F.3d 371, 376, n. 8 (7th Cir.2003) ("a state's discretion to exclude services deemed `medically necessary' ... has been circumscribed by the express mandate of the statute"); Pittman by Pope v. Sec'y, Fla. Dep't of Health & Rehab., 998 F.2d 887, 892 (11th Cir.1993)(1989 amendment adding § 1396d(r)(5) took away any discretion state might have had to exclude organ transplants from the treatment available to individuals under twenty-one); Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Services, 293 F.3d 472, 480-81 (8th Cir.2002) (state must provide EPSDT coverage for "early intervention day treatment" as part of § 1396(a)(13)'s "rehabilitative services" category because program was structured to ameliorate conditions and strengthen skills children learn in therapy); Pereira v. Kozlowski, 996 F.2d 723, 725-26 (4th Cir.1993) ("[i]n section 1396d(r)(5), the Congress imposed upon the states, as a condition of their participation in the Medicaid program, the obligation to provide to children under the age of twenty-one all necessary services, including transplants.")
CMS, the federal agency charged with the responsibility of administering the Medicaid Act, also recognizes that under the EPSDT mandate states are required to provide any service which can be provided under § 1396d(a) if such service is necessary to correct or ameliorate a defect, illness or condition identified by screening. In the State Medicaid Manual, the "official medium by which [CMS] issues mandatory, advisory, and optional Medicaid policies and procedures to the Medicaid State agencies,"
CMS State Medicaid Manual ("SMM") § 5110 (1990)(emphasis added). Thus, according to CMS "[t]he law requires the provision of the services needed by EPSDT clients if the services can be covered under the Medicaid program." Id., § 5340 (emphasis added).
Accordingly, CMS interprets the Act to allow a state Medicaid agency to fix or adjust the amount, duration and scope of services provided under the EPSDT benefit only if that regulation "comports with the requirements of the statute that all services included in [§ 1396d(a)] of the Act that are medically necessary to ameliorate or correct defects and physical or mental illnesses and conditions discovered by the screening services are provided."
On the contrary, appellate counsel for LDHH contend that the twenty-seven health care and service categories enumerated in § 1396d(a) are only hollow forms that each state may fill with as few or as many types of health care, treatment, services and measures as it deems appropriate. Their rationale is that: (1) Section 1396d(a) "is a definitional statute describing the components of `medical assistance.'" (2) "By citing to these definitions, the EPSDT benefit incorporates them as and to the extent they have been described by Congress in the statute." (3) "Therefore, EPSDT entitles Medicaid recipients to what is provided for in section [1396d(a)], but does not dictate the precise content of each ... category of service." (4) Thus, "[t]he EPSDT benefit described in Section [1396d(r)], while broad, does not undermine the State's authority and discretion to establish reasonable standards ... for determining eligibility for and the
The interpretation proffered by LDHH counsel conflicts sharply with the Congressional intent of the 1989 EPSDT amendment as expressed simply and clearly by its plain words, legislative history, CMS interpretations, and as recognized by the federal Circuits by which it has been considered. According to its words, a principal goal of the 1989 amendment is to correct or ameliorate the defects, illnesses and conditions of EPSDT children discovered by the screening services. The means to be used for this purpose are also clear: health care, diagnostic services, treatment, and other measures described in § 1396d(a). Equally plain is the criterion for the application of these means: the health care requested must be necessary to "correct or ameliorate" an eligible EPSDT child's defect, illness or condition. 42 U.S.C. § 1396d(r)(5). Furthermore, the legislative history demonstrates Congress intended the health care and treatment available under the EPSDT program to be made more accessible and effective by: removing the Secretary's express authority to define the means and the standards for its operation; placing the goal, means and standards in the statute itself; and by imposing an obligatory, not discretionary, duty on states to effectuate this aspect of the EPSDT program "whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).
Thus the plain words of the statute and the legislative history make evident that Congress intended that the health care, services, treatment and other measures that must be provided under the EPSDT program be determined by reference to federal law, not state preferences. The 1989 amendment was clearly a response to the disappointing performance of the EPSDT treatment function as optional and within each state's discretion. We reject the notion of LDHH's counsel that Congress made the provision of such treatment mandatory on the states only to cede to the states complete discretion to decide upon the contents of the twenty-seven medical assistance categories purportedly made available to EPSDT eligible children.
All of this is confirmed by the interpretations of CMS. CMS regulations interpret and implement § 1396d(a) in highly detailed specific definitions of the supposedly hollow health care categories. See 42 CFR §§ 440.1-440.185 (2003). CMS does not interpret the enumerated health care categories as empty vessels to be filled according to the states' discretion. Instead, CMS construes the twenty-seven categories to have definite substantive content.
Furthermore, CMS interprets the Act to require that any service a state is permitted to cover under Medicaid that is necessary to treat or ameliorate a defect, physical and mental illness, or condition identified by a screen, must be provided to EPSDT participants regardless of whether the service or item is otherwise included in the state Medicaid plan. SMM § 5110. Thus, LDHH counsel's argument that, for purposes of the EPSDT program, states are merely required to recognize the twenty-seven medical assistance categories and fill them with as few or as many types of health care and services as the states, within their discretion, see fit is completely inconsistent with CMS's interpretation of the EPSDT statutory provisions.
As inspiration for its EPSDT "hollow categories" theory, LDHH draws only upon the anomalous opinion in Salgado v. Kirschner, 179 Ariz. 301, 878 P.2d 659, 663 (1994), which devised the theory in dictum in a non-EPSDT case. Aside from its conflict with all federal authority, the Salgado court demonstrated a fundamental misunderstanding of the EPSDT benefit when it stated that "the special treatment § 1396d(r) accords to persons under twenty-one are for services directly related to their status as young persons: basically well-baby and adolescent care." Id. at 665. Although the EPSDT program includes youth-related services, nothing in the statute, its legislative history or CMS interpretations supports such a restrictive construction of the EPSDT benefit. In fact, many of the services provided under the EPSDT program are quite obviously not related to the recipient's status as a young person. For example, family planning services, pre-natal care, and smoking-cessation drug therapy are all provided under the EPSDT program and yet are not applicable only to youthful recipients. See SMM § 5124(3); CMS Letter to State Medicaid Directors, Jan. 5, 2001.
For these reasons, we conclude that a state Medicaid agency must provide, under the EPSDT program, (1) any medical assistance that a state is permitted to cover under § 1396d(a) of the Medicaid Act, that is (2) necessary to correct or ameliorate defects and physical and mental illnesses and conditions discovered by screening.
Because LDHH does not challenge the district court's determination that, for purposes of the EPSDT benefit, the medical prescription of disposable incontinence underwear is necessary to ameliorate conditions caused by S.D.'s spina bifida and
The Medicaid Act does not directly address the question of whether medically prescribed incontinence supplies are included within the "home health care services" category of medical assistance, as argued by the plaintiffs and apparently determined by the district court. Therefore, we follow the decision of the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) by looking first to the regulations of CMS that interpret the statute. In Chevron, the Court held that:
"When a court reviews an agency's construction of the statute which it administers[, and determines] that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction." Id. at 843, 104 S.Ct. 2778 (footnotes omitted); See Texas v. United States Dep't Health & Human Serv., 61 F.3d 438, 440 (5th Cir.1995)(following Chevron in evaluating the agency's interpretation of the Medicaid statute).
"The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Chevron, supra, 467 U.S. at 843, 104 S.Ct. 2778 (quoting from Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)). The Supreme Court has long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer. Id. at 844, 104 S.Ct. 2778 (citing eleven of its decisions from Edwards' Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210, 6 L.Ed. 603 (1827) to Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982)); accord White v. United States, 143 F.3d 232, 237 (5th Cir.1998); Sykes v. Columbus & Greenville Railway, 117 F.3d 287, 295 (5th Cir.1997).
CMS has promulgated a regulation, codified as 42 CFR § 440.70, which provides, in pertinent parts, that "[h]ome health services include ... [m]edical supplies, equipment, and appliances suitable for use in the home ... [when provided to a recipient at] his place of residence...." Further, 42 CFR § 441.15, in relevant part, provides: "With respect to the services defined in § 440.70 ... a State plan must provide that — (a) Home health services include, as a minimum....(3) Medical supplies, equipment, and appliances." In light of the well settled principles reaffirmed by Chevron, we conclude that the agency's interpretation of "home health care services" as including "medical supplies," when used under the circumstances specified in its regulation, is clearly a permissible statutory construction.
More importantly, CMS has approved state Medicaid plans that expressly provide incontinence supplies under the home health care category of medical assistance.
CMS's approval of state plans affording coverage for the provision of incontinence supplies as a proper cost of home health care services demonstrates that the agency construes § 1396d(a)(7) as encompassing that type of medical care or service.
Contrary to LDHH's contention CMS approval of Louisiana's effective exclusion of incontinence supplies from the home health care services covered for the general Medicaid population, further corroborates our conclusion that under CMS's
Further, the § 1396d(a)(7) category of home health care services is an optional, not a mandatory, category of medical assistance. § 1396a(a)(10)(A). Thus, the state was not required to provide this category of care and services to individuals over the age of twenty-one at all. Consequently, the fact that CMS approved a state plan, adopting the optional category of home health care services, subject to an effective incontinence supplies exclusion, does not indicate that the agency construed § 1396d(a)(7) itself to exclude incontinence supplies. Instead, it suggests that both Louisiana and CMS knew that, if the state adopted that category and did not adopt a provision effectively excluding incontinence supplies, it would be forced to afford incontinence supply service to eligible individuals over twenty-one years old; that the state wished to avoid the cost of this service for the older class of recipients; and that the CMS approved the provision effectively excluding the service because the state was not obligated by the statute to undertake any aspect of the optional category of coverage in the first place. At most, CMS's approval of the effective exclusion indicates only that the exclusion may be an appropriate limitation on the scope of the home health care benefit as it applies to recipients over twenty-one years of age. It does not express or imply that CMS has approved an exclusion applicable to EPSDT benefits.
In sum, the prescription of disposable incontinence underwear that is necessary to ameliorate S.D.'s birth defect and condition of incontinence is a form of medical assistance that is described in § 1396d(a) under the category of "home health care services." § 1396d(a)(7). For all of the foregoing reasons, we conclude that LDHH violated the Medicaid Act by denying S.D. a service described in § 1396d(a) that is necessary for ameliorative purposes under the EPSDT program. See § 1396d(r)(5).
LDHH's appellate counsel appear to argue, without complete clarity or consistency, that the EPSDT mandate does not require LDHH to pay for the prescription of disposable incontinence underwear for S.D. in this case because (1) CMS approved an exclusion of those supplies from EPSDT coverage as part of the Louisiana state plan, or (2) LDHH has implied authority to establish exclusions from EPSDT coverage without CMS approval, and LDHH used that authority to exclude medical assistance for disposable incontinence underwear in this case. These arguments are without merit.
Before addressing the arguments, in order to avoid confusion, we need to identify and dispel a number of false issues, inapposite authorities, and misapplication of statutory elements that LDHH's appellate counsel use sophistically in support of their litigating position: (1) LDHH counsel repeatedly confuse and blur the important distinction between (a) the Medicaid Act's mandatory statutory edict and criterion for the correction or amelioration of defects, illnesses and conditions of EPSDT children and (b) the State plans' bilaterally contracted (state proposed and CMS approved) definitions and standards for the medical assistance provided to the general Medicaid population.
LDHH's reliance on other irrelevancies is similarly misguided. An email from a CMS employee, who did not profess to speak authoritatively for CMS, does not constitute a thoroughly considered statutory construction by CMS that is owed any judicial deference or that is relevant to this case.
Contrary to LDHH counsel's insinuations, the Louisiana state plan does not contain any provision that expressly or implicitly excludes the prescription of disposable incontinence underwear from the coverage provided under the EPSDT program. LDHH's creative arguments to that effect are both confusing and misleading. In short, LDHH contends that, under definitions contained in its state plan and approved by CMS, incontinence underwear is not a "medical supply" and, therefore, is not available under the "home health care services" medical assistance category.
The incontinence supplies exclusion relied upon by LDHH appears in Section 4.19-B of the state plan, a section entitled "Payment for Services." See LDHH First Br. p. 24-27. (citing R.135, which refers to Louisiana State Medicaid Plan § 4.19-B, item 7.) In item 7 of section 4.19-B the plan states that all medical supplies provided under the optional home health care services medical assistance category will
After a careful examination of the Louisiana Medicaid State Plan,
In this connection, LDHH also argues that, because of CMS's "imprimatur" of such a definition or exclusion, its determination that the state plan bars coverage in this instance should have been reviewed by the district court under the deferential standards that courts apply to federal agency actions. The main flaw in this argument, among others, is, of course, that because there is no such definition or exclusion in the state plan, CMS approval of the state plan cannot amount to an imprimatur of such a provision.
LDHH's appellate counsel further suggest that LDHH's denial of S.D.'s claim should be accorded deference and upheld because (1) the Medicaid Act grants LDHH the implied authority or discretion, without CMS review and approval, to make reasonable exclusions from EPSDT
"It is elementary that if an agency's decision is to be sustained in the courts on any rationale under which the agency's factual or legal determinations are entitled to deference, it must be upheld on the rationale set forth by the agency itself." Fort Stewart Schools v. FLRA, 495 U.S. 641, 651-652, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990); SEC v. Chenery Corp., 318 U.S. 80, 93-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943). "Post-hoc explanations — especially those offered by appellate counsel — are simply an inadequate basis for the exercise of substantive review of an administrative decision." United States v. Garner, 767 F.2d 104, 117 (5th Cir.1985)(citing Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); Baylor Univ. Med. Ctr. v. Heckler, 758 F.2d 1052, 1060 (5th Cir.1985); Global Van Lines, Inc. v. ICC, 714 F.2d 1290, 1299, n. 8 (5th Cir.1983); See also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); Pension Benefit Guaranty Corp. v. Wilson N. Jones Mem'l Hosp., 374 F.3d 362 (5th Cir.2004); Ass'n of Civilian Technicians, v. FLRA, 269 F.3d 1112, 1117 (D.C.Cir.2001). Consequently, we must reject LDHH appellate counsel's attempts to support the denial of S.D.'s claim upon a ground not set forth by LDHH itself.
Therefore, we do not reach the hypothetical question which LDHH appellate counsel's post hoc rationalizations seek to raise, viz., whether LDHH has implied authority or discretion to establish exclusions from EPSDT coverage without CMS approval.
Having concluded that the Medicaid Act's ESPDT mandate requires LDHH to provide S.D. with medical assistance for the prescribed disposable incontinence underwear because it is necessary to ameliorate S.D.'s conditions caused by his total bowel and bladder incontinence and spina bifida, we now confront LDHH's assertion that S.D. cannot enforce that requirement under 42 U.S.C. § 1983.
Section 1983 provides a cause of action against state officials for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" but does not provide a mechanism through which citizens can enforce federal law generally. Instead, it provides redress only for a plaintiff who asserts a "violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); see also Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).
In Blessing v. Freestone, 520 U.S. at 340, 117 S.Ct. 1353, the Supreme Court reiterated the three factors that it has traditionally considered when determining whether a particular federal statute gives rise to a right enforceable by § 1983: (1) whether Congress intended for the provision to benefit the plaintiff; (2) whether the plaintiff can show that the right in question is not so "vague and amorphous" that its enforcement would "strain judicial competence"; and (3) whether the statute unambiguously imposes a binding obligation on the states. See Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 925 (5th Cir.2000).
In Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the Supreme Court noted that some courts had misinterpreted the first Blessing factor as permitting a § 1983 action whenever the plaintiff fell within the general zone of interests protected by the statute at issue. The Court clarified that nothing short of an unambiguously conferred right can support a cause of action under § 1983. The appropriate inquiry, therefore, is "whether or not Congress intended to confer individual rights upon a class of beneficiaries." Id. at 285, 122 S.Ct. 2268. Critical to this inquiry is whether the pertinent statute contains
The Medicaid Act provides that "[a] State Plan must provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title, to all individuals" who meet certain eligibility criteria. 42 U.S.C. § 1396a(a)(10)(A)(i). EPSDT care and services are listed in paragraph 4 of § 1396d(a) and, by reference to § 1396d(r), include all the health care, treatment, services, and other measures described in § 1396d(a) when necessary for corrective or ameliorative purposes. This is precisely the sort of "rights-creating" language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right. Accordingly, as the Third Circuit concluded, "it [is] difficult, if not impossible, as a linguistic matter, to distinguish the import of the relevant [Medicaid Act] language — `A State Plan must provide' from the `No person shall' language of Titles VI and IX" which was held up in Gonzaga as the prototypical rights-creating language. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir.2004)(concluding that § 1396a(a)(10)(A) creates a federal right to medical assistance for intermediate care facility services); accord Rabin v. Wilson-Coker, 362 F.3d 190, 201-2 (2d Cir.2004); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.2002).
The only potentially material difference between the rights-creating language contained in § 1396a(a)(10)(A) and that contained in Titles VI and IX is that the Medicaid Act requires state action under a medical assistance plan. The requirement of action under a plan is not, however, dispositive of the question of whether the statute confers rights enforceable by § 1983. "In an action brought to enforce a provision of [the Social Security chapter of the United States Code], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan" 42 U.S.C. § 1320a-2; see also Harris v. James, 127 F.3d 993, 1003 (11th Cir.1997)("[I]n light of [§ 1320a-2], it is clear that the mere fact that an obligation is couched in a requirement that the State file a plan is not itself sufficient grounds for finding the obligation unenforceable under § 1983.") Thus, for all of the forgoing reasons we conclude that the EPSDT treatment provisions of the Medicaid Act contains the "rights-creating language critical to showing the requisite congressional intent to confer a new right." Gonzaga, supra, 536 U.S. at 274, 122 S.Ct. 2268.
Moreover, the Medicaid Act confers the right to the health care, treatment, services and other measures described in § 1396d(a) when necessary for EPSDT ameliorative purposes upon an identified class. The statute requires that participating states provide such care and services "to all individuals" who meet the plan eligibility requirements and are under the age of twenty-one. See 42 U.S.C. §§ 1396a(10)(A), 1396d(a)(4)(B). Thus,
Our conclusion is amply supported by the decisions of this court and other federal Circuits. Before the Supreme Court's decision in Gonzaga, numerous courts, including this court, had concluded that the Medicaid Act confers, upon eligible children, a federal right to the health care, treatment and measures mandated by the EPSDT program. See e.g. Mitchell v. Johnston, 701 F.2d 337, 344 (5th Cir.1983) (holding that EPSDT children had a right, enforceable by § 1983, to preventive dental care); Pediatric Specialty Care, Inc. v. Ark. Dep't. of Human Servs., 293 F.3d 472, 479 (8th Cir.2002) (holding "that the plaintiffs have a federal right to EPSDT services that is enforceable in a § 1983 action"); Miller by Miller v. Whitburn, 10 F.3d 1315, 1319-1320 (7th Cir.1993) (EPSDT treatment provisions are enforceable by § 1983). Moreover, the district courts that have considered the enforceability of the EPSDT provisions after Gonzaga have concluded that the statute creates rights to treatment that are enforceable under § 1983. See Memisovski ex rel. Memisovski v. Maram, 2004 WL 1878332 (N.D.Ill.2004); Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 293-94 (N.D.Ga.2003); Collins v. Hamilton, 231 F.Supp.2d 840, 846-47 (S.D.Ind.2002).
Finally, several post-Gonzaga circuit court decisions have held that provisions of the Medicaid Act containing language similar to § 1396a(a)(10)(A), i.e. "[a] State Plan must provide for making medical assistance available, including [EPSDT benefits] to all individuals", are enforceable by § 1983. Specifically, the Second Circuit in Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir.2004) concluded that Congress intended to create an enforceable right to a temporary grace period by stating that "each State plan ... must provide" the specified grace period for families meeting certain requirements. See 42 U.S.C. § 1396r-6. The Sixth Circuit has held that the fair hearing provision of the Medicaid Act, 42 U.S.C. 1369a(3), which states that "[a] State plan for medical assistance must provide for granting an opportunity
Turning to the second Blessing factor, we conclude that the right asserted by S.D. is not so "vague and amorphous" that its enforcement would "strain judicial competence." Blessing v. Freestone, supra, 520 U.S. at 340, 117 S.Ct. 1353. S.D. asks the courts to interpret the EPSDT statutes to ascertain whether they require Louisiana to provide him with a specific benefit, namely, incontinence supplies medically necessary for EPSDT ameliorative purposes. That level of statutory analysis does not "strain judicial competence;" it is the sort of work in which courts engage every day. The EPSDT provisions at issue are no more "vague and amorphous" than other statutory terms that this court, as well as other courts, have found capable of judicial enforcement. In Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 519-520, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), the Supreme Court held enforceable under § 1983 the Medicaid Act's requirement that states adopt Medicaid reimbursement rates that are "reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities."
Finally, S.D. easily satisfies the third Blessing factor because the Medicaid statute unambiguously imposes EPSDT obligations on the participating states. See 42 U.S.C. § 1396a(a)(10)(A) (stating that "[a] State plan for medical assistance must provide for making medical assistance available, including [EPSDT benefits]" (emphasis added)); see also Miller by
LDHH does not dispute that S.D.'s right to receive services under the EPSDT program is enforceable in an action brought under § 1983. Rather, LDHH claims that the right specifically claimed by S.D., namely, the right to medically necessary incontinence supplies, is not enforceable because Congress did not specifically list this service in the statute. LDHH claims that even if, as we have concluded, medically necessary incontinence supplies must be provided to EPSDT eligible children as a "home health care service", this requirement is based upon CMS's construction of the statute rather than on the statutory text itself. According to LDHH, because the specific right at issue is provided by the agency's interpretations rather than by Congress, under the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275, 291, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the right is not enforceable by § 1983. LDHH, however, misinterprets Sandoval.
In Sandoval, the Supreme Court held that no private right of action exists to enforce a regulation banning disparate impact discrimination that was enacted under Title VI of the Civil Rights Act of 1964 ("Title VI"). Title VI § 601, a rights-creating provision, states that "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered. 42 U.S.C. § 2000d. The Supreme Court noted that it was "beyond dispute" that individuals could sue to enforce § 601's prohibition on discrimination. Sandoval, supra, 532 U.S. at 280, 121 S.Ct. 1511. Furthermore, the Supreme Court found that it was similarly beyond dispute that § 601 prohibits only intentional discrimination. Id. The plaintiffs in Sandoval, however, did not allege intentional discrimination but, rather, alleged only disparate impact discrimination.
Section 602 of Title VI states that "each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity ... is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability...." 42 U.S.C. § 2000d-1. The Department of Justice, pursuant to § 602, had issued regulations that prohibited disparate impact discrimination.
Both the government and the plaintiffs argued that the regulations barring disparate impact discrimination, enacted under § 602, were privately enforceable because the regulations themselves contained rights-creating language. The Supreme Court rejected this argument stating "[l]anguage in a regulation may invoke a private right of action that Congress through statutory text has created, but it may not create a right that Congress has not." Id. at 291, 121 S.Ct. 1511. Therefore, "it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself." Id.
Important for our purposes, however, the Supreme Court also stated that it did "not doubt that regulations applying § 601's ban on intentional discrimination are covered by the cause of action to enforce that action. Such regulations, if valid and reasonable, authoritatively construe the statute itself." Id. at 284, 121 S.Ct. 1511. Moreover, "[a] Congress that intends the statute to be enforced through [§ 1983] intends the authoritative interpretation of the statute to be so enforced as well." Id.
In the present case, the rights-creating language relied upon by the plaintiff is contained in the statute itself. Furthermore, the regulations implementing the statute, and defining "home health care services" to include "medical supplies", are authoritative interpretations of the statute and are enforceable by § 1983. Finally, as discussed in section III, medically necessary incontinence supplies fall within the natural and plain meaning of the term "medical supplies" and CMS has interpreted the "home health care services" category as specifically including such supplies. Accordingly, the federal statutory right asserted by the plaintiff is enforceable under § 1983.
For these reasons, the judgment of the district court is